Karnataka High Court
Srimaata Education Society vs Tungabhadra Board on 16 September, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DAT ED THIS THE 16 T H DAY OF SEPTEMB ER, 2020
B EFORE
THE HON'B LE MR. JU ST ICE SACHIN SHANKAR MAGADUM
W.P.NOs.143615-143616 OF 2020(EDN -REG)
BETWEEN :
1. SRIMAATA EDU CATION SOCIETY
REP. B Y ITS PRESIDENT
SHRI K.SATISH KU MAR
AGE: 45 YEARS, OCC: AGRICU LT URE
R/O. B ALANJ ANEYA TEMPLE STREET
BRUCEPET, B ALLARI
TQ. & DIST: B ALLARI - 583 101
2. SRIMAATA DEGREE COLLEGE
REP. B Y ITS PRESIDENT
SHRI K.SATISH KU MAR
AGE: 45 YEARS, OCC: AGRICU LT URE
R/O.B ALANJANEY A TEMPLE STREET
BRUCEPET, B ALLARI
TQ. & DIST: B ALLARI - 583 101
... PETIT IONERS
(B Y SRI. F.V. PATIL, ADVOCAT E)
AN D :
1. TUNGAB HADRA B OARD
REP. B Y ITS SECRET ARY
T.B. B OARD T.B .DAM, HOSAPETE
TQ. HOSAPETE,
DIST: B ALLARI - 583 101
2. THE EX ECUT IVE ENGINE ER
HW&HLC DIVIS ION, T.B . B OARD
2
T.B.DAM, HOSAPETE
TQ.HOSAPETE
DIST: B ALLARI - 583 101
3. THE SUB DIVIS IONAL OFFICER ESTA TE
AND HW SUB DIVISION, T.B . B OARD
T.B. DAM, HOSAPETE
TQ: HOSAPET E
DIST: B ALLARI - 583 101
... RESPONDENTS
(B Y SRI. MAHESH WODEY AR, ADVOCATE)
THESE WR IT PET ITIONS ARE FILED U NDER
ARTICLES 226 A ND 227 OF THE CONSTITUT ION OF
INDIA, PRAYING T O:
(A) ISSU E WR IT IN TH E NAT URE OF CERTIORAR I T O
QU ASH THE IMPUGNED ENDORSEMENT DATED
11. 02.2020 B RG.NO.EE/HW & HLC DIVN/AB /A1/2019- 20
83M PASSED BY THE RESPON DENT NO.2 V IDE
ANNEX URE-J .
(B )ISSU E WRIT IN T HE NAT URE OF MANDAMU S
DIRECT ING THE RESPOND ENT NO.1 TO CONSIDER THE
REPRES ENTATION DATED 08.0 2.2020 PRESENTED ON
12. 02.2020 V IDE ANNEX URE-H.
THESE WRIT PET IT IONS HAV ING BEEN HEARD
AND RESEVED F OR ORDERS ON 22.07.2020 COMIN G ON
FOR PR ONOUNCEMENT OF ORDER S, THIS DAY, THE
COU RT MADE T HE FOLL OWING:
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ORDER
The captioned writ petitions are filed challenging the endorsement dated 11.02.2020 passed by the second respondent in proceeding No. EE/HW & HLC Divn/AB/AI/2019-20 83M as per Annexure-J.
2. The facts leading to the case are as under:
The first petitioner is an educational Society which is registered under the Societies Registration Act. The petitioners after registration of the society have started Degree College in the year 2001-2002 in a rented building. The petitioners-society after securing affiliation from Gulbarga University also started BBM and BBA course as well as BCA course. The petitioners-society were running the college at Dobhighat on rental basis. Since the said premises was not conducive for academic pursuits, the first petitioner-education society requested the first respondent to allot a building and also an open area for running the college on rental basis. The first respondent allotted the petition premises and 4 accordingly a deed came to be executed on 15.2.2005. It is also stated in the writ petition that the petitioners- society sought for additional space to put up further construction in view of increase in strength. The petitioners-society was granted lease for a period of five years and the same has been periodically renewed. It is also stated in the petition that the respondents have further extended the lease from 15.02.2015 to 14.2.2020.
The first petitioner-education society submitted a representation on 8.2.2020/12.2.2020 addressed to 2nd respondent to place it before the first respondent-Board for renewal. The grievance of the petitioners before this Court is that the second respondent without placing the matter before the first respondent has issued the impugned endorsement on 11.2.2020 directing the first petitioner-society to hand over vacant possession. The said endorsement is called in question before this Court by the petitioners.
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3. The respondents on receipt of notice have contested the writ petition and filed statement of objections stoutly denying the entire averments made in the writ petition. The respondents have contended in the statement of objections that as per the Board Rules the buildings came to be leased only for a maximum period of five years and that the same came to be renewed at the request of the first petitioner-society who had infact given an undertaking in 2015 that they would not seek any further extension. The respondents have also seriously disputed the contention of the first petitioner-society that they have put up permanent structure at their own expenses with the consent of the respondents-Board. To buttress this contention the respondents have at paragraph 5 have specifically stated that the first petitioner-society had requested for permission to construct temporary structure containing temporary sheds and sheets which can be easily dismantled. The respondents have also specifically averred that first petitioner-society is in default and has failed to pay the rent regularly. A specific averment is 6 also made at Para 6 of the statement of objections to the effect that the premises was not maintained by the first petitioner-society for a long time. Having personally visited the premises it was found that the premises is virtually abandoned and the class rooms were locked even during working days. The respondents have also contended that the desks and other furniture were piled with dust and the toilets were in pathetic condition and thereby serious allegation are attributed by the respondents against the first petitioner-society that the first petitioner-society is not at all running the college. Further prayer is also made before this Court to hold an enquiry on the first petitioner-society to find out as to the whereabouts of the staff working and students studying.
4. The respondents further relying on the lease agreement dated 15.2.2015 as per Annexure-R9 would contend that the lease period has expired and as such the first petitioner-society is bound to handover possession as agreed under the lease agreement. At para 7 12 of the statement of objections, the respondents have specifically stated that the first respondent-Board has resolved to invite tenders to lease building similar to that of successfully leased MST hall on PPP model. On these set of facts, the respondents have contended that the endorsement issued by the respondents hereinafter as per Annexure-B cannot be questioned by the first petitioner-society and in this background a specific contention is raised that the writ petitions are not maintainable and the same are liable to be dismissed.
5. To rebut the allegations in the statement of objections, the petitioners have filed an amendment application seeking additional relief along with photographs. The same is culled out as under:
"Bb. Issue Writ in the nature of
Certiorari to quash the Direction dated
12.02.2020 brg. Letter No. EE/HW & HLC
Divn/AB/A1/2019-20 issued by the
Respondent No.2 vide ANNEXURE - L, in the
interest of justice and equity."
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6. The learned counsel appearing for the
petitioners would vehemently argue and contend before this Court that since the first petitioner-society has invested huge amounts and additional construction is also made, the impugned endorsement issued by the second respondent as per Annexure-A needs to be quashed by this Court since the representation submitted by them to the first respondent-Board to consider renewal would become infructuous and in this background, the learned counsel appearing for the first petitioner-society would requests this Court to quash the impugned endorsement as per Annexure-J. The learned counsel would further submit that if the first petitioner- society is abruptly closed, the petitioners-society will be put to great hardship and the students who are undergoing the course for second, fourth and fifth semesters would be put to irreparable loss. The learned counsel would submit to this Court that the first petitioner-institution is a public institution and the same is established to cater to the needs of the general public and as such the second respondent has erred in passing 9 the impugned endorsement and the same would warrant interference by this Court. The learned counsel would also vehemently argue and contend that the amendment application deserves to be allowed to do substantial justice and hence, relying on the averments made in the amendment application would submit to this Court that the photographs produced along with the amendment application clearly demonstrate that the petitioners- society is running educational institutions by imparting education to students.
7. Per contra, learned counsel appearing for respondents would vehemently oppose the writ petition and contend that the writ is not maintainable. He would submit that there is no dispute that the lease period has expired. Once there is no dispute that there is termination of lease, the petitioner has no locus standi to approach this Court under Articles 226 and 227 of the Constitution of India. To buttress his arguments, he would rely on the following judgments of the Apex Court: 10
(1)Bareilly Development Authority and another .vs. Ajai Pal Singh and Others (1989) 2 SCC 116; (2)State of Gujarat and others .vs. Meghji Pethraj Shah Charitable Trust and others (1994) 3 SCC 552; (3)National Highway Authority of India .vs. Ganga Enterprises and another (2003) 7 SCC 410; (4)State of Kerala .vs. M.K. Jose rendered in Civil Appeal No. 6086/2015.
Relying on the aforesaid judgments he would vehemently argue and contend before this Court that in contractual matters between the State and a private party, rights are governed only by contract and when an aggrieved person is a non-statutory authority, he cannot invoke the writ jurisdiction of this Court to enforce any contract.
8. The learned counsel for the respondents would further rely on the judgment rendered by the Apex court in Saroj Screens Private Limited .vs. Ghanshyam and others(2012) 11 SCC 434 and Usha 11 Mehta .vs. Government of Andhya Pradesh and others (2012) 12 SCC 419 and would submit to this Court that the State and its agencies and instrumentalities cannot transfer public property or interest by negotiations to private persons . Relying on the above said judgments he would submit to this Court that the authorities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Such properties have to be dealt in accordance with law by issuing publication in official gazette thereby inviting wider participation by public.
9. On these set of grounds, the learned counsel for respondents would submit that no legal right has accrued to the petitioners-society consequent to the issue of endorsement as per Annnexure-"J" and petitioners have no legal right after the expiry of the lease period. He would submit to this Court that the relief sought for by the petitioners-society cannot be 12 entertained before this Court and hence, requests this Court to dismiss the same.
10. Heard the learned counsel for the petitioners and respondents. Perused the records.
11. On perusal of Annexure-R9 filed along with the statement of objections which is admittedly an agreement executed by the respondents-Board, Clause 2 of the agreement would clinch the issue and the same is culled out for better understanding:
"2. The terms of agreement is for a period of 5 years (Five years only) and is not intended for further extension under any circumstances beyond the period of 5 years. The period of 5 counts from the date of handing over of building i.e., from 15.02.2015 to 14.02.2020."
12. On reading Clause 2 of Annexure-R9, the first petitioner-society has virtually given an undertaking that they would not seek any further extension beyond the period of five years. At Clause 9 the first petitioner- 13 society has further given an undertaking to restore possession to the respondents-Board. The contention of the learned counsel for petitioners-society that such a clause is found in all the earlier agreements and it is a standard clause cannot be accepted. This argument is difficult to accede to. The petitioners-society having agreed to the terms and conditions in the agreement, has signed the same and as such is bound by the terms and conditions contemplated in the agreement. The petitioners-Society after expiry cannot be permitted to retract and contend contrary to the terms and conditions, which is not permissible. As rightly contended by the learned counsel appearing for respondents where matters are bound by contract, the writ petition is not maintainable since it is public law remedy and the same is not available to private party. The Hon'ble Apex Court in State of Kerala .vs. N.K.Jose while referring to the principles laid down in the State of Bihar .vs. Jain Plastics and Chemicals Limited has held that the disputes relating to contracts cannot be agitated under Article 226 of the Constitution 14 of India and was of the view that the writ petitions filed pertaining to contractual disputes ought to be dismissed on the ground of maintainability. The judgments cited by the learned counsel appearing for respondents on maintainability are squarely applicable to the present case on hand.
13. There is also some force in the first respondent-Board's contention that they are intending to invite tender to lease the Board's premises. This contention raised by the respondents is in consonance with the catena of judgments rendered by this Court as well as the Apex Court wherein it has been consistently held that the premises cannot be leased without having recourse to public auction and tenders. How to deal with public premises is a policy decision and the means adopted for the same are just executive prerogatives. It is not domain of the Court to evaluate the advantages of the competitive bidding. If Board has taken policy decision to auction properties, such a procedure cannot be termed as inconsistent with Article 44 of the 15 Constitution of India and inference can be drawn that respondents-Board intends to bring in transparency, fairness and weed out possible discrimination. The petitioners-society has failed to place on record or point out any alleged constitutional vice, illegality in the impugned notice issued by the second respondent as per Annexure-"J". In the light of the above said principle, the relief sought for by the petitioners to issue a writ of mandamus to the respondents to consider their representation where a request is made for renewal cannot be entertained and such a direction cannot be issued as it is not legally permissible under law. I am of the view that since the petitioners have no subsisting right in the petition premises and since the lease has expired, the relief sought for by way of amendment also cannot be entertained. I have also meticulously examined the photographs. I genuinely doubt that the first petitioner-society is actually running the educational institution in the petition premises. The photographs placed on record indicate that fresh painting is carried out to the selected rooms and 16 everything appears to be stage managed to give an impression to this Court that they are actually running the educational institution in the petition premises. A handful of students are photographed and the petitioner has made a feeble attempt to give an impression to this Court that several Degree Courses are being pursued and education is imparted to the students. However, this material aspects would not be of much relevance. This Court is of the view that the relief sought for by way of an amendment cannot be considered by this Court in the light of catena of judgments rendered by the Hon'ble Apex Court supra.
14. For the reasons stated supra, the petition is liable to be dismissed and hence, I pass the following:
ORDER Writ petitions are dismissed. No order as to costs.
Sd/-
JUDGE * al b / -.